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The case of Kaltoft v The Municipality of Billund is concerned with whether obesity qualifies as a disability and therefore whether the duty on employers to make reasonable adjustments extends to obese employees. The judgment from the Court of Justice of the European Union is expected in the next four to six months. However, the Advocate General recently issued an opinion on this point.

Definition of disability

The main part of the opinion considered whether obesity, without more, fell within the definition of ‘a disability’. As was pointed out by the Advocate General, the EU definition of disability covers the situation where a physical or mental condition makes the “carrying out of that job or participation in professional life objectively more difficult and demanding.”

The Advocate General went on to say that in“cases where the condition of obesity has reached a degree that it, in interaction with attitudinal and environmental barriers, as mentioned in the UN Convention, plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails, then it can be considered to be a disability.”

The opinion of the Advocate General is, therefore, that obesity is capable of qualifying as a disability if it has a real impact on the employee’s ability to participate in work.

Disability Discrimination Act

This issue was also considered last year by the Employment Appeal Tribunal in Walker v Sita Information Networking Computing Ltd.In that case, the EAT held that an obese claimant who suffered from a number of physical and mental conditions was disabled under the Disability Discrimination Act 1995. The EAT confirmed that when considering whether an individual is disabled, a tribunal must concentrate on whether the employee has a physical or mental impairment and not the causes of such an impairment.

Employers should remember that obesity, like stress, is not a disability in itself. However, many of its symptoms may result in the employee meeting the statutory definition of disability. Additionally, the cause of the ‘disability’ is not relevant. Instead it is the effect of the employee’s various mental and physical impairments that matters. If they have a substantial adverse long-term impact on the employee’s ability to carry out day-to-day activities, then the physical and mental consequences of obesity could well meet the definition of a disability.

For more information about obesity being considered as a disability or to discuss how the issues raised in this article may affect your business, contact Lyons Davidson’s employment team.